Courts Define Limits of EPA’s Control of Storm Water under Clean Water Act

Recent decisions U.S. District Court in the Eastern District of Virginia and the U.S. Supreme Court define the limits of the extent to which authorities can control discharges of storm water under the Clean Water Act (CWA). On January 3, 2013, in Virginia Dept. of Transp. V. U.S. E.P.A., the Eastern District of Virginia held that the EPA is authorized to set Total Maximum Daily Loads (TMDL) of pollutants permitted to be discharged into bodies of water under the CWA; however, TMDLs do not apply to storm water carrying sediment, because storm water runoff is not a pollutant under the CWA. As a result of prior unrelated litigation, the EPA was required to set TMDL limits for discharges into the Accotink Creek, a tributary of the Potomac River in Fairfax County, Va. , because the creek was determined to have “ ‘benthic impairments,’ which is to say the community of organisms that live on the bottom of the creek were not as numerous or healthy as they should be.” The EPA placed a limit on the flow of storm water into the creek due, in part, to a determination that the storm water contained sediment which is considered a pollutant. The Court analyzed the language of the CWA and concluded that although it authorizes the establishment of TMDLs for pollutants, and sediment is a pollutant, it could not place limits on storm water containing sediment because storm water is not a pollutant under the act. The Court concluded that Congress had been very specific in providing “precise standards and definite guidelines on how the environment should be protected” and does not extend the authority to the EPA to establish TMDLs for non-pollutants as surrogates for pollutants. Accordingly, the limits placed on the storm water flow rate into the creek were voided.Five days later, on January 8, 2013, the Supreme Court issued a decision in Los Angeles County Flood Control District v. NRDC 568 U.S. ___(2013) which held that a “discharge of pollutants” does not occur when polluted water flows from one portion of a navigable water body through “concrete channel or other engineered improvement” into another section of the water body. In the case, the Flood Control District operates a “municipal separate storm sewer system” that collects and discharges storm water. The Court concluded that it does not qualify as a discharge of pollutants under the CWA, quoting from the Second Circuit decision, Catskill Mountains Chapter of Trout Unlimited, Inc. v. New. York, 273 F. 3d. 481, 492 (CA2 2001) “…[i]f one takes a ladle of soup from a pot, lifts above the pot, and pours it back into the pot, one has not added soup or anything else to the pot.”These two decisions demonstrate an intention to strictly construe the CWA, and provide a practical, if not holistic, view of the hydrogeological systems. Although not specifically stated in Virginia DOT, storm water may be seen as a natural source of water that drains into navigable waters, and therefore, is not subject to discharge limits that would apply to industrial discharges into the same water body. This is supported by the Los Angeles Flood Control decision, which concludes that the collection and discharge of storm water does not constitute the discharge of a pollutant. Arguably, this concept should be able to be applied to sewage systems which have been authorized and controlled by governmental bodies, as they also are a part of the system of water collection naturally flowing into the regional water “drainage” into navigable waters.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.